CBD-Infused Foods Remain Caught in A Patchwork of State and Local Laws

By Elizabeth Tansing, Senior Director, State Affairs, Food Marketing Institute

State cannabidiol (CBD) laws are joining the likes of plastic bag and minimum wage bills as a patchwork of differing state and local laws flood the country. But what makes the issue of CBD drastically different, is whether a state or locality is willing to defy federal law. 

Food and Drug Administration(FDA) says that CBD cannot be marketed as a food or dietary ingredient under the exclusionary clauses of the Federal Food, Drug and Cosmetic Act, which prohibits the marketing of a substance as a dietary supplement or food if the substance is the subject of an investigational new drug application.

While 33 states and the District of Columbia passed laws broadly legalizing marijuana in some form, 11 states (Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington) adopted recreational-use laws. The difference among these 11 states and others is how they address CBD-infused food. 

In mid-July, attorney generals from 34 states, the District of Columbia, Guam, and the Northern Mariana Islands submitted a letter in response to the FDA’s request for comments on the safety, manufacturing, and sale of products containing cannabis or cannabis derived compounds. Among other things, they asked FDA to continue to explore manufacturing, testing and marketing best practices so that consumers are not put at risk for misleading advertising claims, or harm to their health from dangerous additives or undisclosed risks of use, including how these products interact with other dietary or pharmaceutical products. 

There is no doubt that some states and localities will continue to determine their own policies surrounding CBD-infused food, while others may remain in agreement with FDA. Below is a sample of state policies by region:

The West & Mountains

Colorado recently amended their food and drug laws to say that food containing CBD is not adulterated and therefore is permitted for sale. 

Alternatively, California’s Department of Public Health last summer issued guidance on CBD in foods. California stated in its guidance that unless FDA changes its position, or the state receives information changing its position, California doesn’t view CBD to be a lawful food or dietary ingredient. California does, however, allow the sale of non-food items like CBD-infused lotions, and allows the manufacturing and sale of cannabis products, which includes edibles. There is pending state legislation (AB 228) that would allow for the retail sale of CBD in food. Los Angeles County, California, recently announced enforcement action against any retailers or restaurants selling CBD-infused food products. 

In Washington State, there appears to be confusion with no clear official guidance. The State Liquor and Cannabis Board says they only regulate products containing cannabis THC, while the Department of Health regulates consumables containing CBD and has asked retailers to remove food products containing CBD. 

South

In Texas, the Department of State Health Services removed hemp from its list of dangerous drugs, but those who sell CBD over the counter, or buy it, can still be prosecuted under a separate statute that says all cannabis-derived products are illegal. 

Midwest

Michigan and Ohio do not allow for the sale of CBD in food. In fact, Ohio’s Department of Agriculture has been cracking down on sellers of CBD products.

East 

Maine recently amended its food and drug laws stating that food containing CBD is not adulterated and therefore is permitted for sale.

Massachusetts does not allow for the sale of CBD in food. There is conflicting information in New York, where medical marijuana is legal. Officials at the NY Agriculture Department issued guidance last December saying it waslegal to sell “CBD tea,” “chocolates with CBD drizzle” and other CBD edibles, if the products are made and marketed as dietary supplements. 

The New York City Department of Health stated in a tweet that as of July 1, 2019, city health inspectors are embargoing all food and drinks for sale containing CBD, and that the NYC Health Code prohibits adding CBD to food or drink, including in packaged food products. Embargoed food and drink must be discarded or returned to the supplier.

What is FMI doing on this issue?

FMI provided oral testimony and submitted comments to FDA, and oral testimony to the  United States Department of Agriculture (USDA) as the agencies move forward with regulation of hemp.

FMI is also assisting our member companies in navigating this complex landscape through legal memos from outside counsel, webinars and in-person sessions at recent and upcoming FMI events, such as the FMI State Issues Retreat, slated for August. 

Additionally, FMI has launched a CBD resources webpage to provide a place for members to easily access information on this topic, including the following materials:

As the policy landscape continues to change, FMI will continue to report on and assist our membership on CBD issues. The U.S. Senate Committee of Agriculture, Nutrition and Forestry will hold a Hemp Production and the 2018 Farm Bill hearing on Thursday, July 25 at 9:30 a.m.